Complainant

Respondent

Parties

Sarah  Treacy

Centz Retail Holdings Ltd.

Representatives

Darach McNamara BL instructed by  Dillon Geraghty solicitors

Rachel Duffy BL instructed by Ian Mckenna of O'Donnell McKenna solicitors on 19 and 20 June 2023 and Ian McKenna of Mckenna O'Donnell solicitors on 21 September 2023

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00048385-001

28/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00048385-002

28/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048385-003

28/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00048385-004

28/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00048385-005

28/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00048385-006

28/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00048385-007

28/01/2022

The Complainant started her employment with the Respondent on 6 August 2019 as Head of Legal. She submitted a number of complaints to the WRC, namely that she was constructively dismissed and that she did not receive either her full pay or her holiday entitlements. She also asserted that that the Respondent discriminated against her both when they failed to afford her reasonable accommodation in respect of her disability and when they did not pay her the same rate of pay as a male colleague who was doing like work. She also alleged that the Respondent victimised her following a grievance she made on 21 October 2021.

CA-00048385-001:

The Complainant asserted that the Respondent's actions concerning the handling of her grievances constituted a fundamental breach of her employment contract. These grievances included issues such as the right to equal pay for like work, where she received lower pay than her male comparator based on gender, the denial of reasonable accommodation for her disability, exposure to a pattern of bullying and harassment, and facing penalisation/victimisation for raising concerns about bullying, harassment, and discriminatory treatment with the Respondent. Moreover, the Respondent was accused of failing, refusing, or neglecting to provide the complainant with a meaningful grievance process to address and resolve her complaints.

The Respondent’s conduct in the handling of the situation around her grievance where none of its wrongdoing was acknowledged or addressed left the Complainant to understand that her mistreatment would be ongoing if she were to remain in her employment.

The Complainant also stated that her decision to resign satisfies the reasonableness test for constructive dismissal in that it was clear that the conduct of the Respondent was so unreasonable that she could not be expected to put up with it any longer. Despite the egregious conduct of the Respondent, the Complainant stated that she engaged in a grievance procedure to try and resolve the difficulties posed by the Respondent’s conduct. She alleged however that the grievance procedure provided by the Respondent flagrantly breached the principles of fair procedures from its commencement in assigning the responsibility for the grievance process to a person more junior than the Managing Director, such that there was no reasonable prospect of an independent assessment of the issues under consideration. She also asserted that the unfairness of the grievance investigation was evident from the report that issued where the superficial nature of the consideration of the grievance, the lack of regard for the evidence supporting her grievances, and the casual acceptance of the Managing Director’s account of events, was evident.

CA-00048385-002:

The Complainant stated that she was diagnosed as having Attention Deficit Hyperactivity Disorder (ADHD) in or around 2 June 2021 and notified her diagnosis in writing to the Respondent in June 2021. The psychologist’s report, which she provided to the Respondent on 15 June 2021, identified that it would be beneficial for her to work from home for a portion of her working week to allow her some down time while still working.

Specifically, the Complainant set out to the Respondent on 15 June 2021 that she found work in the office incredibly distracting, particularly in circumstances where she had to focus on issues of people or project management or policy documentation. The Complainant sought an accommodation of having the flexibility to work from home on occasion, as required. She was clear that she was not looking to work from home on a permanent basis, but only when her disability affected her ability to work in the office. The Respondent refused to provide the Complainant with the requested accommodation and accused her of using her disability to leverage a pay increase. The Complainant’s consulting psychologist recommended, in addition to the benefit the flexibility of working from home would give the Complainant, that she be provided with a private office space in which to work. The Respondent’s proposal was that she work from the cash office in the building in Robinhood Industrial Estate, which she stated was entirely unsuitable, not least because it was not properly equipped from an IT perspective, but also because it was regularly required for other uses, during which time the Complainant was required to vacate same. The Respondent made no other offers of private office accommodation and continued to refuse to provide the Complainant with the flexibility to work from home. The Respondent accused the Complainant of having wanted the clinical psychologist to specifically recommend home working as though to diminish the Complainant’s needs.

The Complainant stated that the Respondent allowed another employee to work from home in other circumstances where that employee did not have a disability, and allowed the Complainant to work from home in the late stages of her pregnancy because of Covid concerns. She stated that this clearly indicated that working from home was an accommodation which could be made but which was simply refused by the Respondent.

The Complainant persevered with working without the reasonable accommodations sought which created challenges which she should not have been faced. The Complainant included the refusal of the Respondent to provide her with reasonable accommodations for her disability as part of her grievance complaint and it was dismissed on the basis that the Respondent had a policy not to allow working from home. The Complainant asserted that this entirely missed the point and purpose of reasonable accommodation and highlighted that the Respondent determined that it would not provide the working from home accommodation without reference to any medical practitioner or follow up queries regarding the Complainant’s needs. The Respondent’s Managing Director noted in his feedback to the grievance process that he did not consider that the project work the Complainant proposed doing from home “necessitated working from home”.

CA-00048385-003:

The Complainant stated that the Respondent underpaid her in circumstances where she was paid a daily rate of pay rather than her entitlement to be paid a monthly rate based on one twelfth of her annual contracted salary. The shortfall in her pay totalled €1,695.55.  Despite extensive email correspondence with the Respondent in which no credible explanation for the Complainant’s underpayment was provided, the Respondent failed, refused and/or neglected to rectify the underpayment and pay the Complainant the monies due and owing to her pursuant to her contract of employment.

The Complainant also stated that she was not paid in respect of outstanding holiday pay on termination of her employment. The Complainant is owed the sum of €288.46 in respect of same.

CA-00048385-004:

The Complainant stated that she set up the legal department in the Respondent organisation. She stated that she did the full range of legal work in the department, such as personal injuries, conveyancing, dealing with planning matters as well as commercial leases. She also dealt with regulatory complaints and engaged with the relevant bodies, such as the HPRA and the WRC.

The Complainant’s comparator, X, was recruited by the Respondent in March 2020, immediately prior to the commencement of the Complainant’s period of maternity leave and was paid €85,000 per annum. At that time, the Complainant was paid €65,000 per annum as Head of the Legal Department. She stated that she did not raise the pay discrepancy at the time because her focus was on getting the handover to X prior to her going on maternity leave.

On the Complainant’s return to work from maternity leave, her pay was not adjusted and she remained earning €20,000 per annum less than X. She stated that she discussed the pay discrepancy with both Ms McCartney, the HR Director and Mr Maniar, the Managing Director on 15 June 2021 and was informed by Mr Maniar that he gave pay rises based on value to the business and not seniority. X was a qualified Solicitor, where the Complainant is a qualified Barrister, both with equivalent legal qualifications. In addition to the handling of legal matters which the Complainant and X did interchangeably, the Complainant had management and administrative responsibilities. Notwithstanding those administrative responsibilities, the Complainant stated that she and X worked on largely identical matters, but that she carried a more substantial number of files than X. She also highlighted that there was no work that X did that she didn’t do. She further alleged that she set X’s tasks and also reviewed his work.

The Respondent ultimately committed, through Ms McCartney, that the Complainant’s salary would be increased to €75,000 per annum with effect from 1 July 2021. Despite that commitment however the pay increase was not processed by the Respondent and the Complainant remained on €65,000 salary until the increase was finally implemented on 1 October 2021. Despite the salary increase on 1 October 2021, the Complainant was still paid €10,000 per annum less than her comparator X.

CA-00048385-005:

The Complainant stated that she was victimised by the Respondent for having made a complaint on 21 October 2021 to the MD, Naeem Maniar and Carol McCartney, the HR Director about inter alia being paid less than her comparator X on gender grounds and for having requested to work from home on occasion following her diagnosis with ADHD. Specifically, the Complainant stated that, following the filing of her complaint, Mr Maniar indicated for the first time that certain Personal Injury litigation would be managed by the insurers rather than in-house by her department. She further stated that the number of instructions issued to her by Mr Maniar amounted to almost zero and additionally asserted that he was not giving her instructions to complete the matters currently assigned to her. She also highlighted that Mr Maniar was giving work that should have been done by her to others in the company or had decided to outsource it. In addition, she alleged that Mr Maniar sought to re-allocate her workload on the Respondent’s IT system. 

CA-00048385-001:

The Complainant, having raised her grievance, was facilitated in accordance with the Respondent’s grievance procedure. The Complainant, then dissatisfied with the outcome, was again facilitated with a right of appeal to a third party, who gave an unbiased and objective assessment of the complaints and the relevant evidence with respect to same. Ultimately, having assessed the complaint and the evidence of each of the parties, each of the complaints were not upheld.

While it was accepted by the Respondent that the Complainant utilised the grievance policy, however, it was not accepted that, having been dissatisfied with the outcome, she was entitled to treat the contract as having been abandoned by the Respondent and/or was acting objectively reasonable in terminating her contract of employment.

CA-00048385-002:

The Respondent stated that they recognised that the Complainant had ADHD, and agreed that this should be considered a disability for the purposes of the Employment Equality Act.

The Respondent also accepted that the Complainant provided them with the report her Clinical Psychologist in June 2021. They highlighted that the report from her Clinical Psychologist stated; “Given Sarah’s diagnosis, it is expected that she will find working in an open plan office very distracting and as such it is recommended that she be provided with somewhere silent where she can focus on work and also be able to take movement breaks when required without disturbing her colleagues.” On foot of the said report, and in accordance with its recommendations, the Respondent made arrangements to provide the Complainant with a separate office within which she could carry out her work free from distraction and would be free to move about as required.

CA-00048385-003:

The Respondent denied making any unauthorised deductions from the Complainant’s renumeration. It was also highlighted that the Complainant’s salary was paid in arrears, which arrears would differ depending on the calendar month in question.

CA-00048385-004:

The Respondent stated that X was an inappropriate comparator, because the work being carried out by both him and the Complainant was not “like work” in accordance with the Acts. Specifically, X held differing qualifications to the Complainant and was employed by the Respondent because of his qualifications. X is a qualified Solicitor, who was employed to act in his capacity as a Solicitor within the Respondent company. By reason of his holding of such a qualification, the comparator was entitled and required to carry out actions in the course of his work, which the Complainant, as a matter of law, was not entitled to do. Further, the rate of renumeration payable to the alleged comparator was based on his level of qualification and previous experience, which was understood to bring value to the Respondent company.

CA-00048385-005:

The Respondent stated that upon being informed of the existence of her disability, the Respondent sought to engage and take appropriate measures so as to allow her to perform her work duties. Specifically, Ms Cartney stated in her evidence that they had re-arranged the cash office to allow the Complainant to work there. Ms McCartney also stated that upon being informed of disparity in pay between the Complainant and X, the Respondent engaged in negotiation with a view to providing what they believed was an appropriate pay rise, notwithstanding their view that X and the Complainant were not performing “like work”. Further, Ms Cartney asserted that the Complainant was afforded significant opportunity and advantage arising from her relationship with Mr Maniar, being her direct line Managing Director and Executive Chairman of the Respondent, and in particular with regard to Mr Maniar’s assistance with the Complainant’s personal banking matters and in providing financial assistance for the Complainant’s brother.

CA-00048385-001:

The Law

This is a complaint of constructive dismissal pursuant to the Unfair Dismissals Act. The Act at s.1(b) defines constructive dismissal in the following manner:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,”

Findings

As the Complainant is alleging constructive dismissal, the fact of dismissal is in dispute. The onus of proof therefore rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her in terminating his employment.

The statutory definition and the relevant case history envisages two circumstances in which a resignation may be a ‘constructive dismissal’. They are where the employer’s conduct amounts to a repudiatory breach of the contract of employment such that the employee is ‘entitled’ to resign, often referred to as the ‘contract test’. In the seminal case of Western Excavating (ECC) v Sharp [1978] IRLR 332, this was said to require that the employer was guilty of conduct “which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract”.

The second circumstance, which can be relied upon either as an alternative or in combination with the contract test, is where the employer conducts his affairs in relation to the employee so unreasonably that the employee cannot be expected to put up with it any longer. Described as the reasonableness test, it was stated in Western Excavating (ECC) v Sharp [1978] IRLR 332 that an assessment should be made of “the conduct of the employer and whether it conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving”. As set out in Conway v Ulster Bank Limited UDA 474/1981, the Complainant is required also to act reasonably by providing the employer with an opportunity to address whatever grievance they may have.

Contract test

The Complainant’s representative highlighted that that there is a term implied into every contract of employment that an employer has a duty to maintain trust and confidence in his or her employee(s) as highlighted in the case of Cronin v Eircom [2007] ELR 84 where Ms Justice Laffoy found: “[A]s a matter of principle a contractual term of mutual trust and confidence… should be implied into each contract of employment in this jurisdiction by operation of law”.

I find firstly that the treatment of the Complainant by Mr Maniar, as outlined elsewhere in this decision, in the months before her employment terminated, of which she gave wholly credible evidence, was sufficiently intolerable as to constitute a significant breach of the employment contract.

In the absence of any evidence from Mr Maniar, I find that the Complainant has met, and Respondent has breached, the contract test set out in Western Excavating referenced above.

Reasonableness Test

While I have found that the Complainant has met the contract test, I will also examine whether she acted reasonably in deciding to terminate her employment.

In assessing whether she did so, I note that the Complainant provided the Respondent with the opportunity to address her complaint both by raising a grievance and by fully exhausting the Respondent’s grievance procedure in accordance with the requirements of the Employment Appeals Tribunal in the Ulster Bank case cited above.

In terms of the reasonableness of the Respondent’s behaviour in relation to how her grievance was addressed, the Complainant stated in the first instance that the Respondent acted unreasonably because the investigation was carried out by a junior employee in relation to allegations that were made largely against the MD of the organisation. The Complainant further asserted that the investigation should have been carried by an external party and highlighted that the report that issued in respect of the Complainant’s grievance was superficial and demonstrated a lack of consideration of the evidence supporting the Complainant’s grievances, as well as a casual acceptance of the Respondent’s account of events.

The Respondent’s representative disputed this and asserted that the Respondent acted reasonably. Specifically, he stated that a comprehensive investigation was carried out into the grievance made by the Complainant and that she was afforded the right to appeal the findings of this investigation. There was no direct evidence presented by the Respondent at the hearing however by either the employee who conducted the grievance investigation, the external barrister who conducted the appeal hearing or the Respondent’s MD against whom the grievance was largely made against. Given the failure by the Respondent to present these witnesses, I must consider the evidence to be preferred; that of the Complainant who gave compelling and direct evidence of the negative treatment she was subjected to or that of the Respondent who relied on evidence that was not presented at the hearing and was not subject to cross-examination.

In making this decision, I note O’Donnell’s J findings in Zalewski v An Adjudicator Officer [2021] IESC 24 which determined that where there is a conflict, which in the instant case there is between the version of events presented by the Complainant and the Respondent on behalf of the perpetrator, evidence should be given under oath when required and there should be a right of cross examination:

145:.Finally, in this regard, it is striking that the Act sets out specific procedures for the adjudication officer (and the Labour Court) to follow. Section 41(5) requires the adjudication officer to permit the parties “to be heard” and “to present evidence”…… The Act contemplates “evidence” being given by “witnesses” having the same privileges and immunities as witnesses in the High Court. As long ago as Re Haughey, these features of court proceedings, and the ability to cross-examine the opposing party, were regarded as fundamental to fair procedures, and the right of cross-examination (which was excluded by the procedures adopted by the Committee of Public Accounts) was one of the rights without which no party could hope to make any adequate defence of his good name..”

Considering the foregoing points, I find that the Complainant acted reasonably in deciding to terminate her employment and that the Respondent has not met the reasonableness test set out in Western Excavating above.

Given that she has met the contract and reasonableness tests and that the Respondent acted unreasonably, I find that the Complainant was unfairly dismissed.

CA-00048385-002:

The Law

Disability is defined in section 2 of the Act as:

“(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person's body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, (e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour…

Section 16(3)(b) of the Act provides that: “the employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability – (i) to have access to employment, (ii) to participate or advance in employment, or (iii) to undergo training, unless such measures would impose a disproportionate burden on the employer”.

I note firstly that it was not disputed that the Complainant had ADHD and I find that this constitutes a disability as set out in the Act above. In addition, it was not disputed that the Respondent allowed another employee to work from home in circumstances where that employee did not have a disability, and also allowed the Complainant to do likewise in the latter stages of her pregnancy because of Covid concerns. I also noted that despite the Complainant’s psychologist having recommended that she be permitted to work from home on occasion because of the difficulties she had working in the open plan because of her ADHD, the Respondent refused to allow her to do so and suggested that she work in the cash office as an alternative. Despite the Complainant having tried to work in the cash office, she stated that it was suitable because of the noise as well as the interruptions and the Respondent continued to refuse to allow her to work from home.

The Supreme Court in Nano Nagle School v Daly [2019] IESC 63 decided the following concerning the interpretation of Section 16 of the Act, at paragraph 84:

“Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section”, that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance. But s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

The Court made it clear that the mandatory primary duty on the employer under Section 16(3)(b) is that he or she shall take appropriate measures where needed in a particular case to enable a disabled person to participate and advance in employment unless these measures would impose a disproportionate burden.

Section 16(4) defines appropriate measures. Appropriate measures are not just physical changes but may include changes in work practices. Each individual case must be assessed by the employer to establish what appropriate measures are required. An employer’s response to assessing what appropriate measures are required is described in Employment Law (Regan 2017) at paragraph 17.277 as follows: “It requires employers to generally take a proactive approach to locating suitable measures with which an individual with a disability can be accommodated in the workplace. In this regard it requires an individualised approach by employers. It allows adjustments to be made in order that disabled employees may be deemed capable of performing the essential tasks of a particular job, but if the individual cannot do so with the aid of reasonable adjustments or if the adjustments are simply too expensive for the employer, then the requirement is not necessary or required. It involves the employee entering into an interactive dialogue with the employer, to search for the right kind of accommodation needed in the overall circumstances of the case. It is a proactive obligation placed on employers.”

Notwithstanding the above, the Respondent did not present evidence of any assessment made by them in terms of the Complainant’s working from home request. In circumstances where it was recommended by her psychologist that the Complainant be allowed to work from home on occasion, that the Respondent had allowed her to work from home in the past and had allowed another employee to do so and failed to make an assessment of the Complainant’s needs themselves, I find that the Respondent failed to make the Complainant reasonable accommodation for her disability and that she was therefore discriminated against.

CA-00048385-003:

Section 41 of the Workplace Relations Act 2015 states: -

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

and

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

As this complaint was referred to the WRC on 28 January 2022, and no reason was presented to me to extend this period, I can only consider any contravention of the Act in the six month period prior to the referral of the complaint, namely from 29 July 2021 to 23 December 2021, the date of her resignation.

Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as: 

“…any sums payable to the employee by the employer in connection with his employment, including- (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise”

Section 5(1) of the Payment of Wages Act 1991 provides: 

“An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.” 

The remainder of the Section 5 provides for other circumstances in which an employer can make a lawful deduction from an employee’s wages which are not applicable to the instant case.

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it will be necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

In relation to the instant complaint, the Complainant’s contract of employment states that she is entitled to be paid a monthly salary. This means that the gross salary payable every month should be the same, on the assumption that she works every day in the month. Bizarrely, the Respondent stated that the salary she was due to be paid every month depended on how many days were in the month. This position is clearly erroneous because it is at odds with her contract of employment which stated that she was to be paid monthly and should not therefore differ each month depending on how many days are in a month.

As the first day of the cognisable period was 27 July 2021,  I only examined the alleged underpayments in the period from then to 23 December 2021, the day her employment ended.

In examining this period, I note that the Complainant was entitled to receive her annual salary of €65,000, pro – rated at 80% if she worked 4 days per week in July, August and September, and €75,000 pro – rated at 80% for the months of October, November and December if she worked 4 days per week in those months.

When examining her July salary, I find the Complainant should have been paid €4,333 (€65,000 /12 months * 80%) if she worked every day of the agreed four-day week, in accordance with the terms and conditions of her contract of employment. Although the Complainant stated that she did not work one day in this period, the Respondent stated that she did not work six days. Given that there was no evidence to support their assertion that she did not work six days, I prefer the evidence of the Complainant and find that the payment shortfall in July was €332.28.

When examining her August salary, I find the Complainant should have been paid €4,333 (€65,000 /12 months * 80%) if she worked every day of the agreed four-day week, in accordance with the terms and conditions of her contract of employment. I note that the Complainant was paid more than this in respect of her August salary, namely that she was paid €4,376.23, even though she did not work 1.5 days in August. Although the Respondent stated that she did not work for 7.5 days in the period, there was no evidence provided to show that she did not work on the days the Respondent said she did not. I therefore prefer the evidence of the Complainant and find that she was overpaid €417.90 in the month.

When examining her September salary, I find the Complainant should have been paid €4,333 (€65,000 /12 months * 80%) if she worked every day of the agreed four-day week, in accordance with the terms and conditions of her contract of employment. I also noted that the Complainant was paid more than her monthly contractual entitlement in respect of her September salary, namely that she was paid €5,001 gross, which was €668 more than what she was entitled to in accordance with her contract of employment. Although the Respondent stated that she did not work for 5 days in the period, there was no evidence provided to show that she did not work on the 5 days the Respondent said she did not. I therefore prefer the evidence of the Complainant and find that she was overpaid €668.07 in the month.

When examining her October salary, the Complainant should have been paid €5,000 for the month (€75,000 /12 months * 80%) if she worked every agreed working day, in accordance with the terms and conditions of her contract of employment, which she said that she did. As she was entitled to be paid €5,000, I find that there is a shortfall between the contractual pay she was entitled to and the payment she received in respect of her October pay. Although the Respondent stated that she did not work for 3 days in the period, there was no evidence provided to show that she did not work on the days the Respondent said she did not. I therefore prefer the evidence of the Complainant and find that she was underpaid €1,248.95 in the month.

When examining her November salary, the Complainant should have been paid €5,000 for the month (€75,000 /12 months * 80%) if she worked every agreed working day, in accordance with the terms and conditions of her contract of employment, which she said that she did. As she was entitled to be paid €5,000, I find that there is a shortfall between the contractual pay she was entitled to and the payment she received in respect of her November pay. Although the Respondent stated that she did not work for 7 days in the period, there was no evidence provided to show that she did not work on the days the Respondent said she did not. I therefore prefer the evidence of the Complainant and find that she was underpaid €671.72 in the month.

When examining her December salary, the Complainant should have been paid €1,827.45 for the month (€75,000 /12 months * 80%) if she worked every agreed working day, in accordance with the terms and conditions of her contract of employment. Although the Respondent stated that she did not work for 14.5 days in the period, there was no evidence provided to show that she did not work on the 3.5 days that the Complainant worked but that the Respondent said she did not. As she was entitled to be paid €1,827.45 for the days she worked in the month, I find that there is a shortfall between the contractual pay she was entitled to and the payment she received in respect of her December pay in the amount of €528.57.

Considering all of the foregoing, I find that the Complainant’s underpaid wages amounted to €1,695.55.

Both sides agreed that the Complainant did not receive one days’ holiday pay. Given that she was paid a salary of €75,000 at the time of her departure, this amounts to €288.46 (€75,000/260) 

CA-00048385-004:

The Law

Discrimination for the purposes of this Act.

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

Like work.

7.—(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—

(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

(2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection (1)as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work).

Entitlement to equal remuneration.

19.—(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.

(3) For the purposes of this Part, where B’s employer is an associated employer of A’s employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

(4) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer.

(b) Where paragraph (a)applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1)as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.

(c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B.

(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.

Burden of proof.

85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission undersection 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to whichsection 9applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked.

Findings:

It has been the well-established practice of the Commission and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64 the Court stated in respect of the provision in S 85A that; “This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Margetts v Graham Anthony & Company Limited, EDA038,the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”            

So, it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.

The Complainant states that she was directly discriminated against on the grounds of her gender in relation to her rate of pay in that she performed like work or work of equal value with her named comparator X who is male.

It was not disputed by the Respondent that the Complainant was paid less than the remuneration paid to her colleague, X. However, the Respondent denied that the comparisons are like for like. Rather, it was argued that X was hired because of his extensive previous relevant experience, which the Complainant was said to lack, and that his remuneration reflected this. In addition, it was argued that the Complainant was a barrister while X was a solicitor.  Accordingly, the Respondent stated that the difference in remuneration between the Complainant and X was attributable to factors other than gender, in accordance with section 19(5), see above, of the Act.

To succeed with her claim the Complainant must show that she performed ‘like work’ with that of X, that she received less pay than him and that the reason for the pay differential is the fact that she is a woman, and her comparator is a man.

In deciding whether she did so, I note that a person performs ‘like work’ when that work is the same, similar or of equal value to that to that of her comparators.

The Complainant stated that she hired X in March 2020 prior to her going on maternity leave in April 2020. She also gave extensive evidence of many of the files that both she and X worked on over the period that they were both employed by the Respondent. In addition, she stated that they often worked on the same files and asserted that while there was no work that X did which she did not do, he refused to do conveyancing which she did.

X stated in his evidence at the hearing that his salary was commensurate his previous experience as a legally qualified professional.  Significantly, in my view, he also stated that understood the role he undertook upon being hired as “all-encompassing”. In addition, he acknowledged working on shared files with the Complainant, conceding occasional disparities in their work and accepted the largely interchangeable nature of the tasks performed by both parties. X also stated that he did not work on certain files which the Respondent’s written records provided to the hearing stated that he did. He also acknowledged that the Complainant was his line manager, although he did on occasion take instruction directly from the Managing Director.

Crucially, in my view, the Complainant stated in her evidence, which was not challenged by the Respondent, that she had confirmed both with Bar Council and Law Society that she was able to engage with barristers and solicitors acting for the other side and that she was also able to instruct barristers to act on behalf of the Respondent. There was also no evidence presented by the Respondent to suggest that there was any work that X did which the Complainant could not do or did not do because they had different qualifications, namely that X was a solicitor and she was a barrister.

While the Respondent asserted that the Complainant had hired X, it was not disputed that the Managing Director signed off on his salary. In assessing the Respondent’s assertion that X was paid more than the the Complainant in order to attract a candidate of his experience at the time he was hired, I have regard to the seminal decision in Enderby v. Frenchay Health Authority C-127/92, which in relevant part states:

‘The state of the employment market, which may lead an employer to increase the pay of a particular job in order to attract candidates, may constitute an objectively justified ground…’ for paying more to such candidates than to other employees.

No evidence was put forward by the Respondent however to support their assertion that at the time of his recruitment they had to pay X 30% more than the Complainant, due to the state of the employment market in March 2020. Furthermore, it is crucial to note that even if such evidence had been provided, any wage disparity between the Complainant and her comparator should have been proportionate. Given that the pay differential between the Complainant and X varied between 23% and 42% over the period in which both were employed by the Respondent, I cannot accept that this was the case.

Considering all of the foregoing, I find that the Complainant did carry out like work to that carried out by X and she has established a prima facie case of discrimination that meets the requirements of s.85A of the Act in respect of this complaint which the Respondent failed to rebut.

CA-00048385-005:

Section 74(2) of the Act defines ‘victimisation’ within the meaning of the Act as follows:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

The operative words in the definition of the circumstances which can constitute victimisation for the purposes of the Act are:“…victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to …”. It follows that there must be a causal connection between the act which the Appellant alleges amounts to victimisation and the Complainant’s original complaint to his employer.

Section 85(A) of the Act places the burden on the Complainant of establishing a prima facia case (in this instance) that the impugned acts constitute victimisation. That section provides:

“85A.(1) Where in any proceedings facts are established by or on behalf of a

complainant from which it may be presumed that there has been discrimination in

relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation

to the burden of proof in any proceedings which may be more favourable to a

complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, arerevoked.”

Findings:

The Complainant stated in evidence, as set out above, that having made a complaint of discriminatory treatment on 21 October 2021 on the grounds of gender and a failure to afford her reasonable accommodation in respect of her disability, the Respondent victimised her by undermining her, taking work away from her, isolating her and side-lined her within the Department of which she was the head of. She stated that this was done in view of her colleagues and direct reports with a view to intimidating her and make it impossible for her to do her role.

I must therefore establish if the Complainant was subjected to adverse treatment as a result of making a complaint of discrimination pursuant to Section 74(2) of the EE Act. 

The Labour Court in the case of Department of Defence v Barrett EDA 1017 stated in relation to victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

In considering whether a complaint of discrimination had been made in a victimisation complaint in the above case the Labour Court stated:

“It is well settled that the protection against victimisation is not limited to situations in which a complaint of discrimination is subsequently upheld. However, the catalyst alleged for the adverse treatment complained of must, in some sense, come within the ambit of one of the protected acts referred to at s.74(2) of the Acts”

I find firstly that the complaints of discrimination made by the Complainant on 21 October 2021, namely inter alia that she was not paid the same as a purported male comparator and that she was not afforded reasonable accommodation in respect of her disability “come within the ambit of one of the protected acts referred to at s.74(2) of the Acts”.

I am also satisfied, based on her uncontradicted evidence, that the Complainant was subjected to adverse treatment by the Respondent when, following her raising of the grievance on 21 October 2021, decisions, that had not been flagged prior to her complaint, were made by Mr Maniar to outsource work and that the Complainant’s own workload was reduced significantly following the allocation of work to others within the business instead of to her.

I find however that the adverse treatment she was subjected to, as outlined above, was not in reaction to the protected action having been taken by her on 21 October 2021. I make this finding on the basis of what happened in the period prior to the aforementioned protected action. Specifically, the Complainant’s outlined both in evidence at the hearing and in the grievance report she submitted to the Respondent on 21 October 2021 several examples of adverse treatment that took place between then and 15 June 2021, the day on which she made her original complaint that she was paid less than her purported comparator and initially requested reasonable accommodation. This evidence included various instances of adverse treatment such as Mr Maniar making decisions about her department without consulting her. Further she alleged that he repeatedly sought to undermine her in front of her subordinates. Given that I see little difference in the treatment the Complainant stated that she was subjected to in the period prior to 21 October 2021 and that which she was allegedly subjected to in the period between 21 October 2021 and 15 November 2021, I am unable to ascertain that the adverse treatment she claims to have experienced during the latter period was in reaction to the protected action she took.

Considering the foregoing, I find that the Complainant has failed to establish a prima facie case of victimisation within the meaning of Section 74(2) of the Act and I find therefore that she was not discriminated against.

CA-00048385-001:

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or 

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, 

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Having decided that the Complainant was unfairly dismissed, I must now examine the appropriate form of redress in accordance with section 7 (1) of the Act set out above. In making this decision, I note the Complainant’s preference for compensation as a remedy and find that this is appropriate in this instance given that she was constructively dismissed.

In calculating the level of compensation to award, I have regard to the decision of the Adjudication Officer in ADJ 32667, where she stated, inter alia, that: 

“in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.” 

When considering section 7(2)(a), I find, as outlined above, that the Respondent acted unreasonably in their handling of the Complainant's grievance by not engaging an external party to conduct the investigation, particularly considering the nature of the allegations made against the Managing Director. Having regard to section 7(2) (b), I have found that the Complainant acted reasonably as outlined above. I find however when considering section 7(2) (c) that her efforts at mitigating her losses were less than adequate and fell short of meeting the requirements outlined in Sheehan v. Continental Administration Co Ltd UD 858/1999. Furthermore, I determine that section 7(2)(d), (e) and (f) of the Act do not apply in this case as it involved a constructive dismissal.

Considering all of the foregoing points, I make an award of €15,000 in respect of this complaint.

CA-00048385-002:

82.— (1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

( a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77 (1)which led to the decision;

( b) an order for equal remuneration from the date referred to inparagraph (a);

( c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

( d) an order for equal treatment in whatever respect is relevant to the case;

( e) an order that a person or persons specified in the order take a course of action which is so specified;

(f) an order for re-instatement or re-engagement, with or without an order for compensation.

(4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or(1)(f) shall be —

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of —

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) € 40,000,

or

(b) in any other case, € 13,000.

For the reasons set out above, I find that the Complainant was discriminated against because of the Respondent’s failure to make reasonable accommodation for her disability. In deciding on an award of compensation in respect of this complaint, I note in the first instance the principles contained in Von Colson & Kamann v Land Nordrhein-Westfalen [1984] ECR1891 that remedies proposed by National Law and implemented by a National Court when enforcing domestic legislation enacting the terms of a Directive should be “effective, proportionate and dissuasive.

I also note that the Complainant only sought to work from home occasionally and that the Respondent made some efforts to accommodate her disability, although these did not meet the reasonableness test as set out above. I am also satisfied, based on the evidence presented to me, that the failure by the Respondent to provide reasonable accommodation was not the main or the operative reason for the Complainant’s decision to terminate her employment.   

Considering all of the foregoing, I make an award of €5,000 in respect of the discriminatory treatment.

CA-00048385-003:

I find that this complaint is well founded for the reasons set out above and make an award of €1,984.01, which is comprised of the underpayment of wages of €1,695.55 and an underpayment of one days’ holiday pay of €288.46.

CA-00048385-004:

Section 82(1) of the Act states as follows:

82.—(1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;

(b) an order for equal remuneration from the date referred to in paragraph (a);

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

(d) an order for equal treatment in whatever respect is relevant to the case;

(e) an order that a person or persons specified in the order take a course of action which is so specified

(f) an order for re-instatement or re-engagement, with or without an order for compensation.

I have found that the Complainant was discriminated against for the reasons set out above.

In deciding on an award of compensation in respect of this complaint, I note firstly that the Complainant’s comparator X was paid €85,000 from when he started in March 2020 until he was awarded a pay increase in the amount of €7,500 in June 2021. This meant that, when annualised and not pro-rated, he was earning €20,000 more than the Complainant for the period from March 2020 to 31 May 2021, an additional €27,500 for the three-month period from 1 June 2021 to 1 October 2021 and €17,500 more from 1 October 2021 to 23 December 2021. 

I also note the principles contained in Von Colson & Kamann v Land Nordrhein-Westfalen [1984] ECR1891 that remedies proposed by National Law and implemented by a National Court when enforcing domestic legislation enacting the terms of a Directive should be “effective, proportionate and dissuasive.

In addition to the financial losses that arose from the Respondent’s failure to pay her at least the same as her comparator, I must also recognise the emotional distress experienced by the Complainant as a consequence thereof, including the impacts of initiating these legal proceedings.   

Considering the foregoing, I direct the Respondent to pay €55,000 to the Complainant as compensation for all of the effects of the discrimination in respect of this complaint, pursuant to the provisions outlined in Section 82 of the Act.

CA-00048385-005:

As I have found that she did not establish a prima facie case, the Complainant was not victimised.

CA-00048385-006: This complaint was withdrawn.

CA-00048385-007: This complaint was withdrawn.